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"NiyERSITY  OF  N.C.  AT  CHAPEL  HILL 


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ADDRESS  TO  THE  LAW  CLASS 

AT  THE 

UNIVERSITY  OF  NORTH  CAROLINA 

31  JANUARY.  1919 


By  Chief  Justice  Walter  Clakk. 


I  am  always  glad  to  meet  young  men.  You  represent  the  future.  You 
are  not  yet  bound  down  by  habits  of  thought  and  action  which  have 
become  second  nature.  The  horizon  of  young  men  is  all  before  them 
and  has  no  limit.    You  can  truly  say, 

"No  pent-up  Utica  contains  our  powers. 
The  whole  boundless  continent  is  ours." 

It  is  always  pleasant  to  return  to  Chapel  Hill,  but  on  this  occasion  it 
is  with  feelings  of  unusual  sadness,  for  you  sit  under  the  shadow  of  a 
great  affliction.  The  University  has  lost  two  of  its  most  distinguished 
and  able  sons — the  loved  and  gifted  President  of  this  University,  Edward 
K.  Graham,  who  did  so  much  for  its  advancement  and  to  place  it  in  the 
forefront  of  the  great  educational  institutions  of  this  country,  and  more 
recently  Dean  M.  H.  Stacy,  whom  all  men  had  picked  out  for  his  suc- 
cessor and  who  was  on  the  eve  of  election  when  he  met  his  untimely  death. 
At  the  recent  Centennial  of  the  Supreme  Court  in  Raleigh  one  able 
speaker  portrayed  the  great  changes  which  have  been  made  in  law  and 
procedure  in  the  last  hundred  years,  and  another  foretold  some  of  the 
changes  which  might  occur  in  the  next  one  hundred.  I  shall  not  attempt 
to  repeat  what  they  so  well  said.  There  is  left  the  law  as  it  now  is,  but 
as  that  is  being  told  you  daily  by  your  teachers  much  better  than  I  can 
tell  you,  and  more  at  length,  I  must  keep  off  that  ground.  I  can  conceive 
of  nothing  left  open  to  me  except  to  say  somewhat  of  the  law  as  it  ought 
to  be. 

The  demand  of  the  age  is  for  efficienci/  in  every  line  of  business.    It 

is  not  undue  criticism  to  say  that  no  business  in  this  country  is  run 

with  less  efficiency  than  the  administration  of  the  law  and  the  courts. 

No  other  business  known  to  man  could  survive  the  inefficiency  that  ia 

shown  in  that  department  of  life.     I  will  not  say  of  "activity"  because 

it  is  not  active.    Yet  there  is  no  profession  which  attracts  a  larger  per 

i~  cent  of  the  talent  of  the  country  than  the  law.    Young  men  go  into  the 

f)    profession  eager,  hopeful,  expectant  of  reforms  in  practice,  in  procedure 

^    and  in  substantive  law.    Some  of  them  may  preserve  that  attitude  even 

O 


until  they  get  upon  tlie  Bench.  But  sooner  or  later  the  routine  is  too 
powerful  for  most.  The  habit  of  consulting  precedents  and  yielding 
obedience  to  the  thoughts  of  dead  men  as  embodied  in  the  decisions  of 
the  priests  and  laymen,  who  as  judges  created  the  "common  law,"  is  too 
strong,  and  the  habit  of  delay  and  postponement  becomes  a  part  of  their 
existence.  After  they  enter  the  profession  some  undergo  the  same  meta- 
morphosis as  the  sisters  of  Phsethon  or  Daphne,  so  vividly  described  by 
Ovid,  and  become  rooted  in  the  debris  of  the  past  and  immobile;  but, 
unlike  Daphne,  they  are  not  changed  into  laureL 

THE  EXECUTIVE  AND  JUDICIAL  VETO 

The  President  of  Harvard  College  in  a  recent  work  truthfully  declared 
that  in  this  country  public  opinion  and  the  will  of  the  people  are  slower 
in  gaining  control  than  any  other  country  in  the  world.  This  may  seem 
strange  to  you,  but  the  fact  is  that  our  Constitution  is  now  the  oldest 
upon  the  planet.  In  this  country  almost  alone  the  Executive  still  has  a 
veto,  which  was  given  lest  the  Senate  and  House  might  not  prove  safe 
and  sane.  In  all  the  States  of  this  Union,  except  North  Carolina,  the 
State  constitution  has  put  the  same  bridle  in  the  hands  of  the  Governor. 
In  England,  the  formality  of  the  sovereign  "approving"  the  acts  of 
Parliament  is  retained,  but  it  is  only  a  formality,  for  no  executive  in 
that  country  since  1707  has  dared  to  veto  an  act  of  Parliament.  In  the 
other  constitutions  of  the  world,  with  few  if  any  exceptions,  the  execu- 
tive or  sovereign  is  denied  any  veto  upon  the  expression  of  the  will  of 
the  people  through  its  lawmaking  body.  In  this  country  we  have  gone 
further  by  allowing  also  the  assumption  by  the  other  coordinate  depart- 
ment of  the  government,  the  judicial,  of  the  power  to  veto  the  action  of 
the  representatives  chosen  by  the  people  to  formulate  their  will  into  law. 
This  power  is  not  conferred  by  any  provision  in  the  Constitution  of  the 
United  States  or  of  any  State,  and  it  is  utterly  unknown  in  the  history 
of  all  other  countries.  The  U.  S.  Supreme  Court  took  this  power  to 
itself  in  Mathury  v.  Madison  in  1803,  and  all  the  State  Supreme  courts 
have  followed  suit. 

At  Eome,  the  privileged  classes  when  afraid  to  directly  oppose  meas- 
ures in  the  popular  interest  had  resort  to  the  system  of  Augurs.  When 
an  assembly  was  about  to  be  held  in  the  Campus  Martins  at  which  the 
vote  was  likely  to  be  hostile,  these  augurs,  always  selected  by  the  patri- 
cians, would  adjourn  the  meeting  uj)on  the  ground  that  the  augurs  de- 
clared it  was  not  an  "auspicious"  day,  or  that  the  sacred  chickens  kept 
by  the  priests  were  ofi  their  feed,  or  the  entrails  of  the  sacrificial  victim 
showed  that  it  was  unsafe  to  proceed,  or  that  the  flight  of  birds  betokened 
danger,  or  some  other  similar  device  was  resorted  to.  Cicero  said  that 
he  did  not  see  how  an  augur  could  pass  another  without  laughing  in  his 
face.  These  devices  of  statecraft  used  by  the  Romans  to  control  the 
masses  in  the  interest  of  the  classes  without  a  conflict  are  in  nowise 
superior  to  the  action  of  the  judicial  augurs  who  always  find  any  act  of 


Congress  or  of  a  State  Legislature  "unconstitutional"  if  it  conflicts  with 
their  ])reconceived  opinions.  The  judicial  veto  must  exist  "by  divine 
right,"  like  that  claimed  hv  kings  of  old,  for  it  has  no  visible  authority 
and  rests  upon  the  "inqierturbable  ])erpendieularity  of  assertion"  only. 
In  addition  to  the  double  check-rein  upon  legislation  of  the  veto  given 
the  Executive  by  the  Constitution,  and  the  veto  assumed  by  the  courts 
without  any  constitutional  provision,  we  have  the  arrangement  by  which 
members  of  Congress  (in  ordinary  course)  do  not  meet  until  thirteen 
months  after  they  are  elected.  The  result  is  that  the  popular  impulse 
which  chose  Representatives  and  Senators  has  then  lost  its  force  and  the 
Special  Interests  have  had  thirteen  months  to  change  the  views  of  those 
elected.  Besides,  the  Congress  that  is  repudiated  at  the  polls  has  four 
full  months  to  enact  their  measures  before  their  mandate  expires  on  the 
4th  March  following.  Every  effort  to  change  this  anomaly  has  been 
defeated  at  Washington.  The  great  vested  interests  and  corporations 
have  never  been  willing  to  release  this  advantage.  In  other  countries, 
as  under  our  State  Constitution,  the  terms  of  the  new  members  begin 
on  the  day  of  their  election. 

DISSENTING  OPINIONS 

The  Interests  have  always  been  busy  in  the  effort  to  create  a  sentiment 
against  dissenting  opinions.  A  dissenting  opinion  is  an  appeal  from  the 
majority  of  the  Court  to  the  sovereign  whose  servants  they  are.  If  the 
judge  delivering  the  decision  of  the  majority  ought  to  give  his  reasons, 
certainly  the  judge  or  judges  who  refuse  to  go  with  the  majority  owe  it  to 
themselves  and  to  the  public  to  give  their  reasons  for  not  doing  so.  The 
reasons  given  in  such  opinions  have  been  the  safeguard  of  the  republic 
on  more  occasions  that  one ;  besides,  the  fear  of  them  has  prevented 
many  a  decision  that  would  have  been  rendered.  By  his  dissenting 
'  opinion  in  Chisholm  v.  Georgia,  Mr.  Justice  Iredell,  of  this  State,  awoke 
the  people  of  the  Union  and  caused  the  prompt  enactment  of  the 
Eleventh  Amendment.  The  dissenting  judge  who  immortalized  himself 
in  the  Dartmouth  College  Case  has  practically  repealed  that  decision. 
The  dissenting  judges  in  the  Income  Tax  Case  caused  the  enactment  of 
the  Sixteenth  Amendment — but  for  which  this  country  would  have  been 
disabled  to  engage  in  and  carry  on  to  a  successful  end  the  great  war 
which  has  just  closed.  And  the  dissenting  opinions  in  the  Lochner  Case, 
which  brutally  held  that  a  State  had  no  power  to  protect  its  citizens 
from  being  worked  ten  hours  a  day  in  a  temperature  of  120  degrees, 
have  forced  the  highest  court  in  the  land  to  repeal  its  own  violation  of 
the  Constitution  and  of  the  rights  of  free  men  in  that  case  by  holding 
valid  the  Adamson  Law  which  gave  to  the  railroad  employees  of  this 
country  an  eight-hour  day. 

John  Milton  said,  "I  value  no  other  liberty  like  the  liberty  of  freely 
writing  and  speaking  the  truth";  and  Thomas  Jefferson,  in  his  inaugu- 
ral, said  that  he  feared  no  assertion  of  error  if  the  truth  could  be  left 


free  to  combat  it.  Only  they  fear  the  dissent  of  an  honest  judge  who 
fear  the  verdict  thereon  of  an  honest  and  intelligent  public.  But  for 
dissenting  opinions  the  autocracy  assumed  by  the  courts  would  be  abso- 
lute. Men  who  deny  the  right  of  a  jury  to  find  a  verdict,  upon  the 
smallest  facts,  if  even  one  juror  dissents,  illogically  contend  not  only 
that  a  bare  majority  of  the  court  should  invalidate  the  best  considered 
and  most  important  statute,  but  would  suppress  even  the  expression  of 
dissent  by  the  minority  of  the  judges. 

There  are  many  things  which  the  young  lawyers  of  the  State  can 
remedy  when  they  come  into  the  profession  and  before  their  youth  and 
unbounded  enthusiasm  become  petrified  by  the  study  of  precedents. 
Lord  Brougham  said,  "Touch  but  a  single  technicality,  a  single  thread 
of  her  web,  and  the  old  black  spider  of  Westminster  Hall  will  rush  out 
upon  you  with  all  her  brood." 

ROTATION  OF  JUDGES 

Among  other  things  needing  remedy  is  first  the  antiquated  rotating 
system  by  which  our  judges  ride  the  districts  in  succession.  'No  one 
cause  probably  contributes  more  to  the  delay  and  the  costs  of  litigation 
than  this.  A  judge  is  nominated  by  one  district,  but  he  can  ride  in 
succession  the  other  nineteen,  whose  people  had  no  voice  in  his  nomi- 
nation and  to  whom  he  is  not  responsible  in  any  way.  Aside  from  the 
great  and  useless  expense  devolved  on  the  judge  by  such  rotation  and  the 
long  absences  from  his  family  (which  deter  many  of  the  best  men  from 
accepting  such  position)  and  his  ignorance  of  the  people  and  the  sur- 
rounding circumstances — a  knowledge  of  which  would  be  a  great  aid  in 
the  administration  of  justice — there  is  the  constant,  though  it  may  be 
often  unconscious,  temptation  to  each  rotating  judge  to  "continue"  cases, 
which  are  thus  thrown  in  succession  on  judge  after  judge,  and  the 
absence  of  that  sense  of  responsibility  to  the  public  which  belongs  to 
every  judge  who  rides  his  own  district  only.  This  antiquated  and  obso- 
lete system  obtains  nowhere  in  the  world  except  in  North  and  South 
Carolina.    It  has  long  been  discarded  in  other  jurisdictions. 

REFORM  IN  PROCEDURE 

Again,  when  the  Code  of  Civil  Procedure  was  adopted  in  1S6S  it 
provided,  as  is  still  the  case  in  the  other  Code  States,  that  all  summonses 
were  returnable  before  the  clerk  at  a  date  named  therein — not  less  than 
ten  nor  more  than  twenty  days  after  its  issue;  that  if  there  was  a  de- 
murrer it  should  be  filed  in  three  days  and  sent  at  once  with  the  com- 
plaint to  the  judge  at  chambers,  who  should  promptly  decide  and  return 
it,  and  if  an  answer  was  filed  the  case  should  be  transmitted  to  the  first 
term  of  court  for  trial  by  jury.  If  neither  answer  nor  demurrer  were 
filed,  judgment  by  default  was  taken  before  the  clerk.  In  this  way  there 
was  a  practical  and  common-sense  dispatch  in  the  administration  of 


justice.  But  in  our  State  at  that  time  the  people  were  largely  in  debt 
and  delay,  not  expedition,  in  the  courts  was  desired.  Accordingly,  the 
Batchelor  Act  was  enacted  to  suspend  this  section,  which  was  afterwards 
made  permanent,  and  has  prevailed  for  fifty  years,  by  winch  a  demurrer 
carries  the  case  over  to  the  next  term;  and  then  if  there  is  an  appeal 
there  may  be  a  delay  of  twelve  months,  and  on  its  return  the  answer 
may  be  filed  within  a  year  or  two  and  the  trial  on  the  facts  happens 
when  it  may. 

A  census  of  the  cases  in  our  Supreme  Court  for  the  last  year  show  that 
on  an  average  appeals  get  to  that  Court  in  four  and  one-half  years  after 
summons  issues.  We  have  had  cases  there  that  have  been  pending 
twenty  years,  and  indeed  one  case  had  been  in  court  sixty  years.  No 
other  business  in  the  world  could  stand  this  method  of  procedure,  and 
as  a  matter  of  fact  a  very  large  portion  of  litigation  dies  in  the  process, 
■with  wrongs  unredressed  and  rights  unadjudged. 

Among  the  proposed  betterments  in  trial  practice  is  the  suggestion  of 
Prof.  Hugo  Munstenberg,  that  an  instrument  can  be  devised  to  tell  when 
a  witness  is  lying.  This  would  save  much  time  in  trials.  The  theory  is 
that  it  will  raise  his  temperature  and  a  delicate  instrument  would  regis- 
ter the  result.  A  lawyer  not  long  since  told  an  intelligent  client  that  he 
would  have  to  put  him  on  the  stand  as  a  witness  in  his  own  behalf.  With 
some  trepidation  the  client  asked  if  such  a  machine  was  in  existence. 
The  lawyer  replied,  "Of  course  there  is ;  I  married  one." 

DISQUALIFICATION  OF  WOMAN  AS  A  WITNESS 

Under  the  laws  of  Xorth  Carolina  formerly  no  negro  or  Indian  or 
person  of  mixed  blood  with  as  much  as  one-sixteenth  negro  or  Indian 
blood,  whether  bond  or  free,  was  competent  as  a  witness  against  any 
white  person.  (Rev.  Code,  p.  587.)  In  an  eastern  county  of  this  State, 
in  1862,  a  most  estimable  citizen,  while  supervising  the  digging  of  a 
canal  on  his  own  land  and  unarmed,  was  shot  down  in  cold  blood,  with- 
out provocation,  by  a  neighbor  who  had  a  grudge  against  him,  and  who 
rode  up  on  a  horse  with  a  double-barreled  gun  laid  across  the  pommel. 
There  were  more  than  two  dozen  witnesses  present.  One  of  them,  who 
was  the  foreman  or  contractor  of  the  work,  was  a  free  colored  person, 
the  owner  of  property  and  of  good  character,  but  he  had  one-sixteenth 
negro  blood  in  his  veins.  There  were  other  free  colored  persons  present 
as  laborers,  with  some  slaves  hired  from  neighbors,  and  a  dozen  or  more 
slaves  of  the  murdered  man.  The  murderer  was  promptly  acquitted  be- 
cause there  was  no  one  who  could  testify  against  him  under  our  law. 
That  law  has  since  been  repealed  and  the  jury  are  allowed  to  weigh  the 
testimony  of  such  witnesses  for  what  they  may  deem  it  worth.  The  only 
statute  in  this  State  which  now  prohibits  a  jury  to  believe  a  witness  who 
is  competent  to  testify  is  that  which  provides  that  the  jury  shall  not  be- 
lieve the  testimonj-  of  the  "icoman"  on  an  indictment  for  seduction,  even 
though  they  do  believe  her,  unless  she  is  "supported"  by  other  testimony. 


6 

From  the  nature  of  the  transaction  she  is  sometimes  the  only  witness. 
The  defendant  has  his  testimony  enhanced  by  the  fact  that  he  must  be 
found  guilty  beyond  a  reasonable  doubt.  While  the  perpetrator  of  the 
foulest  of  wrongs  is  competent,  the  woman,  who  is  embarrassed  with  her 
shame,  the  victim  of  his  lust  and  lying  and  of  her  faith  in  him,  is  ruled 
out  unless  she  can  find  some  evidence  to  corroborate  her.  This  is  true 
though  the  law  requires  the  jury  to  find  beyond  a  reasonable  doubt  that 
the  victim  was  a  virtuous  and  innocent  woman,  and  that  there  was  a 
promise  of  marriage,  while  the  defendant  can  offer  all  the  testimony  he 
can  rake  up  to  assail  her  life-long  record.  This  blot  upon  our  statute 
book,  this  discrimination  against  women,  will  be  remedied  when  women 
have  a  voice  in  choosing  legislators.  It  should  be  done  now.  It  was 
Robert  Burns  who  said,  "Man  to  man  so  oft  unjust  is  always  so  to 
woman." 

In  an  Abbey  in  France  there  is  a  tomb  to  a  knight  of  the  olden  time. 
On  it  lies  his  effigy  in  marble,  with  shield  and  spear,  and  on  his  armorial 
escutcheon  there  is  engraved  his  name  and  the  following  words :  "He 
was  a  good  Christian  and  a  good  knight  and  traveled  a  long  ways  over 
the  world  deceiving  the  ladies."  Our  law  in  JSTorth  Carolina  seems  not 
to  have  progressed  beyond  that  sentiment. 

THE  NEGRO  PROBLEM 

A  recent  address  speaking  of  the  effect  of  the  negro  element  in  our 
midst  expressed  the  opinion  that  only  these  four  solutions  were  possible — ■ 
i.  e.,  (1)  Amalgamation;  (2)  Extermination;  (3)  Emigration,  or  (4) 
Servitude. 

It  seems  to  me  that,  speaking  to  young  men  who  may  have  read  this 
statement,  I  should  express  the  opinion  that  neither  of  these  four  is 
possible,  and  that  by  the  observance  of  justice  and  due  consideration 
for  the  rights  of  the  weaker  race  the  two  races  may,  and  in  fact  do,  live 
amicably  together.     In  truth,  there  is  no  "negro  problem." 

Amalgamation  is  not  desired  by  either  race,  and  the  Census  shows, 
with  its  stubborn  figures,  that  its  percentage  has  steadily  decreased  in 
each  decade  since  the  war,  and  has  not  increased.  Extermination  is  im- 
possible and  no  one  will  advocate  it  in  this  twentieth  century  after 
Christ.  Emigration  is  also  impossible.  The  colored  people  are  nearly 
one-third  of  our  population  and  furnish  probably  a  still  larger  propor- 
tion of  the  labor  upon  which  our  very  existence  depends.  Our  agricul- 
tural products  in  this  State  last  year  brought  $700,000,000.  The  large 
portion  of  it  created  by  colored  labor  if  struck  from  our  receijjts  would 
paralyze  the  State.  In  the  main,  they  are  industrious,  peaceable,  and 
inoffensive. 

When  "Peg-leg"  Williams  and  one  or  two  other  labor  agents  sought 
to  carry  off  a  few  of  our  colored  laborers  our  Legislature  promptly  im- 
posed a  license  fee  of  a  thousand  dollars  and  enacted  other  restrictive 
measures,  which  showed  that  the  people  of  this  State  not  only  did  not 


wish,  but  would  not  willingly  permit,  the  emigration  of  our  colored 
labor.  Colored  labor  has  its  faults — largely  due  to  its  environments  and 
lack  of  education — but  if  the  vacuum  which  it  would  leave  were  filled 
with  Dagoes,  Slovacs,  Slavs  and  other  white  races,  which  now  furnish 
the  bulk  of  the  immigration  to  this  country,  such  labor  would  be  more 
unruly,  more  given  to  strikes  and  more  unsatisfactory. 

The  fourth  and  last  alternative  of  Servitude  cannot  be  contemplated  a 
half-century  after  Appomattox.  Throughout  the  former  Confederate 
States  there  is  not  a  neighborhood  that  would  be  willing  to  return  to 
that  form  of  labor. 

In  all  the  countries  of  the  world  the  movement  and  migration  of  indi- 
viduals and  of  peoples  have  been  such  that  nowhere  can  there  be  found 
any  large  body  of  men  entirely  of  one  race.  The  English  and  a  dozen 
races  live  amicably  in  India ;  and  the  same  is  true  in  all  the  more  pros- 
perous States  of  this  country  where  the  emigrants  from  abroad  consti- 
tute a  large  part  of  the  creative  force  known  as  the  labor  element.  With 
us,  the  colored  people  are  as  a  rule  orderly,  and  not  turbulent.  Our 
Southern  people  know  them  well — their  good  traits  and  their  failings. 
It  would  take  us  long  to  become  accustomed  to  laborers  of  a  different 
race.  The  progress  and  the  development  of  any  country  depend  upon  its 
labor,  which  is  the  basis  on  which  civilization  rests.  Without  labor  there 
can  be  no  civilization. 

SUFFRAGE  FOR  WOMEN 

Then  there  is  the  certainty  of  the  extension  of  the  suffrage  to  women. 
This  has  been  advocated  by  President  Wilson,  ex-President  Roosevelt, 
and  William  J.  Bryan,  and  is  in  the  platforms  of  all  the  great  parties. 
It  is  quite  probable  that  the  amendment  to  the  U.  S.  Constitution  will 
get  the  one  additional  vote  necessary  to  pass  it  through  the  Senate  be- 
tween now  and  4  March;  and  if  not,  it  is  certain  to  be  enacted  at  the 
called  session  in  the  summer,  and  will  be  ratified,  like  the  Prohibition 
Amendment,  so  quickly  that  women  will  vote  in  all  the  States  at  the 
November  election  next  year.  A  little  boy  who  had  never  seen  his 
grandmother  before,  looking  her  over  very  closely,  said :  "Are  you  my 
grandmother?"  She  replied  with  much  dignity:  "I  am  your  grand- 
mother on  your  father's  side."  To  which  he  replied :  "You've  got  in 
on  the  wrong  side.  If  you  want  to  have  any  infiuence  around  this  house 
you  will  have  to  be  on  mother's  side." 

Young  gentlemen,  you  can  take  the  hint.  It  is  true  the  province  of 
women  is  the  home,  but  for  that  very  reason  they  should  have  the  ballot. 
Their  vote  will  always  be  in  the  interest  of  the  home  and  conservative, 
for  morality,  for  education,  for  sanitation  and  for  the  protection  of 
childhood.  Mr.  T.  T.  Hicks,  in  his  address  at  the  Centennial  of  the 
Supreme  Court,  truthfully  and  wittily  said,  "The  objection  of  many 
politicians  to  equal  suffrage  is  the  fear  that  for  them  it  would  be  an 
answer  to  the  prayer  of  the  Psalmist,  'Teach  me  to  know  mine  end  and 


the  number  of  my  days.'  "  As  a  rule,  women  do  not  seek  office ;  and  as 
■  to  his  prediction  that  one  of  them  may  become  Chief  Justice,  readers  of 
the  Scriptures  will  remember  that  Deborah  was  Chief  Justice  of  Israel 
more  than  three  thousand  years  ago,  for  it  is  said  that  she  was  judge 
over  all  Israel;  and  it  is  significantly  added  "and  the  land  had  rest  for 
forty  years."  She  was  appointed,  too,  at  a  time  when  the  Theocracy 
ruled  and  all  selections  for  office  were  made  directly  by  Jehovah. 

A  member  of  the  Legislature  has  said,  "I  am  for  the  women  having 
the  suifrage  if  they  want  it,  but  I  cannot  see  why  in  the  world  they  wish 
it."  He  is  partly  of  Scotch  descent  and  proud  of  it.  Some  one  asked 
him  if  the  Legislature  could  and  should  pass  an  act  depriving  all  men 
of  Scotch  descent  of  the  suffrage  if  he  would  be  satisfied.  He  instantly 
replied  that  he  and  all  other  men  of  like  descent  would  come  down  to 
Raleigh  and  tear  down  the  Capitol.  Yet  he  seemed  to  think  that  his 
wife,  sisters  and  daughters  should  be  content  with  their  present  exclusion 
from  all  share  in  the  government  and  with  being  put  in  the  same  class 
with  "convicts,  idiots,  lunatics  and  illiterate  negroes." 

The  real  influences  against  suffrage  influences  that  count  are  the 
liquor  interests,  who  feel  that  though  Prohibition  has  been  adopted,  the 
vote  of  the  women  will  make  it  more  effective,  and  the  employers  of  large 
bodies  of  labor,  who  fear  that  that  vote  will  enforce  the  execution  of  the 
laws  against  child  labor  and  will  stand  for  shorter  hours  of  labor.  Then 
there  is  everywhere  an  organization,  more  or  less  perfect,  known  as  "the 
machine  in  politics."  This  element  have  a  large  part  of  the  vote  of  the 
men  coralled  and  they  fear  that  the  coming  of  the  women  to  the  polls 
will  break  up  their  schemes. 

It  has  been  urged  in  opposition  that  if  women  vote  the  negroes  wilL 
There  are  53,000  more  white  women  in  North  Carolina  than  all  the 
negro  men  and  negro  women  put  together,  and  the  admission  of  the 
women  to  the  ballot  box  will  be  the  only  certain  guarantee  of  white 
supremacy.  We  must  also  face  the  fact  that  sooner  or  later  the  negroes 
will  exercise  the  right  to  vote  guaranteed  by  the  Fifteenth  Amendment. 
Every  man  who  has  registered,  voted  or  held  office  in  North  Carolina 
during  the  last  fifty  years  has  taken  an  oath  to  "support  and  maintain 
the  Constitution"  which  contains  the  Fifteenth  Amendment.  Our  "Grand- 
father Clause"  cannot  and  does  not  attempt  to  repeal  that  amendment. 
It  merely  disqualifies  "illiterates,"  which  the  State  had  a  right  to 
enact.  There  is  a  provision  therein  of  an  exemption  as  to  white  people 
till  1908  from  the  disqualification,  but  that  has  been  held  invalid  by 
three  decisions  in  the  238  U.  S.  Reports,  construing  provisions  in  the 
Maryland  and  Oklahoma  constitutions  exactly  like  ours,  and  enforcing 
the  Federal  statute,  which  authorizes  ten  years  imprisonment  and  a 
$5,000  penalty  and  an  action  for  damages  against  any  registrar,  poll- 
holder  or  other  person  making  a  discrimination  in  the  exercise  of  the 
suffrage  on  account  of  race,  color  or  previous  condition  of  servitude. 
We  have  to  face  a  condition,  and  not  a  theory,  and  our  surest  protection 


9 

is  to  increase  the  white  vote  by  doubline;  the  white  majority.  We  have  in 
this  State  about  70  white  men  to  every  30  negroes — a  white  majority  of  40. 
When  women  are  admitted  to  suffrage  we  shall  double  these  figures  and 
will  have  140  white  voters  for  every  60  colored — a  white  majority  of  80, 
just  double. 

The  suggestion  that  admitting  women  to  the  ballot  will  enable  the 
negroes  to  vote  (who  have  been  entitled  to  do  so  for  fifty  years  under  the 
Fifteenth  Amendment)  has  no  parallel  in  its  logic  except  in  the  state- 
ment of  the  African  guide  who  said  "The  little  negro  boys  tie  the 
ostrich's  leg  to  the  cocoanut  tree  and  that  accounts  for  the  milk  in  the 
cocoanut." 

LABOR  ORGANIZATIONS  AND  SOLDIERS 

The  great  growing  power  in  this  country  is  the  labor  organizations 
which  have  risen  wherever  large  bodies  of  white  men  are  engaged  in  in- 
dustry. A  hundred  years  ago  in  England  laborers  Avere  forbidden  under 
heavy  penalties  to  organize  in  labor  unions,  and  an  attempt  to  procure 
higher  wages,  whether  by  peaceable  demand,  by  strikes,  or  any  other 
methods,  was  made  a  serious  offense.  This  "has  long  ceased  to  be  the 
law  there,  and  the  history  of  legislation  here  is  known  to  you  all  to  have 
been  in  favor  of  larger  opportunities  to  those  who  create  the  wealth  of 
the  country. 

In  England  up  to  a  little  over  one  hundred  years  ago  when  a  soldier 
or  a  sailor  returned  from  the  war  there  was  no  hospital,  no  soldiers' 
home,  and  no  pensions  for  him.  The  generals,  like  Marlborough,  Well- 
ington and  others,  received  immense  grants  of  money  and  seats  for  them- 
selves and  descendants  in  the  House  of  Lords,  but  the  veterans  who  won 
the  battle  for  them  at  Waterloo,  at  Trafalgar  and  at  Blenheim  were 
rewarded,  if  at  all,  by  a  permit  to  beg  and  with  the  statutory  provision 
that  if  any  discharged  soldier  or  sailor  should  beg  without  receiving  such 
permit  he  should  be  hanged,  and  some  of  them,  forced  by  necessity  to 
beg,  were  accordingly  hung. 

Farther  back,  after  the  great  English  victory  at  Crecy  and  the  peace 
of  Bretigny  in  1359,  when  England  annexed  the  larger  part  of  France, 
Edward  III.  rewarded  his  victorious  soldiers  by  refusing  to  permit  any 
of  them  to  return  home,  but  disbanded  them  in  the  peaceful  and  pros- 
perous province  of  Brittany  with  permission  to  plunder  its  rich  and 
unoffending  people  at  leisure  and  at  their  will,  which  the  soldiery  did. 
You  will  find  the  details  stated  as  a  cold  matter  of  fact  in  the  pages  of 
Froissart.  The  different  manner  in  which  we  are  receiving  our  return- 
ing soldiers  from  France  is  proof  of  the  consideration  which  the  soldier 
has  won  since  the  day  when  laborers  and  soldiers  and  people  existed  only 
for  the  exaltation  of  those  who  held  rule. 

It  is  a  common  saying  that  young  lawyers  take  to  politics  as  a  duck 
to  water.  As  our  profession  furnishes  all  the  judges  (on  the  higher 
courts  at  least),  two-thirds  of  the  Presidents  and  Governors,  and  on  an 


10 

average  more  than  60  per  cent  of  the  members  of  Congress  and  of  the 
State  Legislatures,  this  is  but  natural.  Our  profession  not  only  largely 
make  the  laws,  but  construe  them  and  execute  them,  and  sometimes  veto 
them. 

CURRENT  CAMOUFLAGE 

As  a  large  proportion  of  you  will  doubtless  be  in  public  life  at  some 
time,  it  may  not  be  amiss  to  say  to  you  that  you  should  not  be  misled 
by  the  current  camouflage  nor  mistake  the  use  of  phrases  for  sound 
argument.     There  are  many  of  these,  but  I  will  mention  briefly  six : 

1.  Personal  Liberty. — This  is  a  good  thing  and  deserving  all  honor, 
and  every  effort  to  maintain  it,  but,  as  Madam  Koland  said,  "Oh,  liberty, 
what  crimes  are  committed  in  thy  name !"  Personal  liberty  has  been 
thus  used  for  a  hundred  years  as  the  chief  reliance  of  the  saloons,  the 
breweries,  and  their  hirelings  to  delay  and  prevent  the  emancipation  of 
the  people  from  the  iniquities  of  the  liquor  traffic.  Only  recently  the 
people,  still  unaware  of  their  power,  with  great  speed  ratified  the  consti- 
tutional amendment  which  the  liquor  interests  thought  they  had  defeated 
by  requiring  its  adoption  within  seven  years. 

2.  States  Rights — has  been  another  favorite  camouflage  with  which  to 
humbug  the  public.  We  all  know  that  this  is  an  element  in  our  Federal 
Constitution,  but  it  has  been  invoked  for  the  protection  of  slavery,  and 
on  many  other  occasions  to  prevent  all  progress,  as  indeed  it  is  now  to 
defeat  the  just  demand  of  the  women  for  a  share  in  the  government. 
The  Constitution  expressly  provides  that  it  may  be  amended  by  a  two- 
thirds  vote  in  Congress  and  upon  the  ratification  of  thirty-six  States,  but 
they  who  are  opposed  to  equal  suffrage  quote  it  as  their  chief  defense, 
even  those  who  have  voted  for  the  National  Prohibition  Amendment. 

3.  Unconstitutional. — This  is  another  cry  raised,  in  season  and  out  of 
season,  to  defeat  measures  which,  too  strong  for  the  lobby,  have  been 
voted  by  Congress  and  the  Legislatures  upon  the  demand  of  the  people. 

4.  Social  Equality. — This  also  has  been  used  to  frighten  the  people  of 
the  South  into  the  abandonment  of  all  measures  of  progress  whenever 
other  means  fail.    It  is  a  scare-crow.    Neither  race  desires  it. 

5.  Socialism. — Our  learned  brethren  of  the  medical  profession  say 
that  there  are  ninety-two  kinds  of  rheumatism.  There  are  at  least  that 
many  kinds  of  Socialism.  If  by  Socialism  is  meant  the  abolition  of  the 
private  ownership  of  property,  or  its  ownership  in  common,  it  is  im- 
possible until  human  nature  is  changed.  It  was  tried  in  the  days  of  the 
Apostles  and  failed.  Its  most  notable  product  was  the  incident  of 
Ananias  and  Sapphira.  If  by  Socialism  is  meant  municipal  ownership 
of  lights  and  water  and  State  or  Government  ownership  of  railroads, 
we  have  them  already. 

6.  "The  right  to  vote  is  a  privilege  and  not  a  right." — This  statement 
is  without  foundation,  and  rests  solely  upon  the  repetition  of  assertion. 
We  did  not  fight  Great  Britain  for  the  "privilege"  of  self-government, 


11 

but  for  tlic  "right"  to  govern  ourselves  by  our  own  votes.  Every  person 
who  has  sufficient  intelligence  and  good  character  has  a  right  to  share 
in  the  government.  The  majority  have  the  right  to  exclude  lunatics, 
idiots,  infants,  and  illiterates  because  they  are  not  mentally  competent, 
and  to  exclude  convicts  because  they  are  morally  defective.  We  excluded 
negroes  till  1S68  because  they  were  mostly  uneducated  and  incompetent. 
It  was  a  mistake  that  the  State  and  Federal  Constitutions  admitted  them 
in  1868.  After  experience  proved  this,  the  "Grandfather  Clause"  in  1898 
excluded  them — not  as  negroes,  but  as  "illiterates."  This  clause  has 
now  been  held  unconstitutional  by  the  U.  S.  Supreme  Court  because  we 
exempted  white  illiterates. 

Women  are  as  competent,  morally  and  mentally,  as  men,  and  have  a 
right,  and  not  a  mere  privilege,  to  vote  and  should  not  be  excluded  ex- 
cept in  those  cases  in  which  men  are  excluded — i.  e.,  when  they  are 
lunatics,  idiots,  infants,  illiterates,  or  convicts. 

There  was  never  a  more  unfounded  statement  than  that  the  vote  is  a 
mere  privilege  granted  by  a  superior,  unless  our  American  Eevolution 
and  all  other  struggles  for  freedom  the  world  around  were  based  on 
falsehood.  When  did  the  male  sex  become  so  superior  that  they  should 
"grant"  or  refuse  such  "privilege"  to  their  mothers,  wives,  sisters,  and 
dautrhters  ? 

You  will  find  that  when  argument  fails,  one  or  the  other  of  the  above 
phrases  will  be  thrown  at  your  head,  as  if  an  epithet  were  an  argument; 
and  when  these  fail  there  is  the  customary  appeal  to  race  and  sectional 
prejudice.  In  the  language  of  the  Apostle,  "Let  none  of  these  things 
move  you." 

There  are  other  matters,  but  I  will  close  with  the  following  quotation 
from  the  Areopagitica,  by  John  Milton:  "For  this  is  not  the  liberty 
which  we  can  hope  for,  that  no  grievance  ever  should  arise  in  the  com- 
monwealth, that  let  no  man  in  this  world  expect ;  but  when  complaints 
are  freely  heard,  deeply  considered,  and  speedily  reformed,  then  is  the 
utmost  bound  of  civil  liberty  attained  that  wise  men  look  for." 

And  I  again  quote  from  the  same  author :  "I  cannot  praise  a  fugitive 
and  cloistered  virtue,  unexercised  and  unbreathed,  that  never  sallies  out 
and  sees  her  adversary,  but  slinks  out  of  the  race,  where  that  immortal 
garland  is  to  be  run  for,  not  without  dust  and  heat." 

Young  gentlemen,  do  not  look  forward  to  a  life  of  ease,  nor  float  with 
the  current.  Stand  for  better  and  higher  things,  so  that  the  condition 
of  the  great  dumb  masses  may  be  somewhat  better  because  you  have 
lived.  In  the  language  of  the  great  Lord  Mansfield,  "Seek  not  the  popu- 
larity that  is  run  after,"  but  that  which  follows  noble  deeds.  Give  to 
the  people  among  whom  you  live  the  best  that  is  in  you ;  it  will  come 
back  to  you. 


Infallible  Government 

By  the  Odd  Man 


Chief  Justice  Walter  Clabk  in  The  American  Law  Revieio. 


There  is  no  question  that  is  more  important  than  the  right  of  the 
people,  through  their  freely  elected  representatives,  to  enact  their  will 
into  law.  The  men  who  made  the  Federal  Constitution  at  Philadelphia 
were  naturally  doubtful  of  the  safety  of  property  under  a  government 
by  the  people.  Up  to  that  time  manhood  suffrage  had  been  entrusted  to 
the  people  in  none  of  the  States.  Suffrage  pertained  to  the  ownership 
of  property,  and  there  were  other  restrictions.  Besides,  at  that  time,  the 
masses  were  uneducated  and  the  experiment  of  government  by  the  people 
was  new  and  untried.  It  had  not  existed  in  England,  which  was  a  gov- 
ernment by  the  landlords  who  sat  in  the  House  of  Lords  and  dictated 
the  selection  of  the  members  of  the  House  of  Commons. 

The  Constitution  at  Philadelphia  restricted  the  making  of  laws  to 
this  extent  and  no  further :  that  the  bill  had  to  be  passed  by  one  House 
and  then  by  the  other,  and  then  it  had  to  be  approved  by  the  Executive, 
and,  failing  to  receive  his  approval,  it  was  necessary  to  be  passed  by  a 
two-thirds  vote  in  each  House.  This  was  deemed  an  ample  security  that 
the  law  was  in  accordance  with  the  Constitution,  and  should  be  enforced, 
subject  to  the  right  of  the  people  to  repeal  it  by  the  election  of  members 
of  the  House  and  Senate  and  President. 

THE  JUDICIAL  VETO 

There  is  not  a  line  in  the  Constitution  which  intimates  an  intention 
that  a  majority  of  the  Supreme  Court  should  set  aside  a  statute  that 
had  been  passed  in  this  manner  and  approved  by  the  President.  It  is 
contended  that  the  proposal  to  give  the  judges  such  power,  and  which 
was  four  times  defeated  in  the  Convention,  was  a  proijosition  that  the 
judges  and  the  President  should  have  revisionary  power  over  an  act 
before  it  passed.  Be  it  so.  This  would  have  been  less  objectionable 
than  the  present  system,  for  it  would  have  given  the  Congress  an  oppor- 
tunity to  conform  the  statute  to  the  revision,  but  it  is  most  singular  logic 
to  hold  that  because  such  power  of  revision  was  four  times  defeated, 
therefore  the  Constitution  gave  to  the  courts  the  power  to  set  aside  a 
law  after  it  was  enacted. 

If  the  Constitution  gave  such  power,  all  that  is  necessary  is  to  point 
it  out;  and  this  no  man  has  yet  done.     The  Convention  knew  how  to 


13 

give  the  President  the  veto  power,  and  it  took  care  not  to  make  it  abso- 
lute, but  merely  suspensive  and  subject  to  be  overruled  by  a  two-thirds 
vote.  If  it  intended  to  give  the  judges  the  veto  it  certainly  would  have 
said  so  plainly,  and  also  more  certainly  would  not  have  made  it  absolute, 
but  subject  to  review  by  a  prescribed  vote  in  Congress,  as  it  did  in 
regard  to  the  presidential  veto.  An  irreviewable  veto  by  five  men  is  as 
objectionable  as  if  exercised  by  one.  The  Decemvirs  were  as  odious  as 
Tarquin. 

SUPREMACY  OF  FEDERAL  LAWS 

It  is  true  that  there  is  a  provision  that  the  laws  enacted  by  Congress 
shall  be  supreme  over  those  enacted  by  the  States.  This  is  necessary  in 
a  federal  form  of  government,  and  it  is  the  function  of  the  Supreme 
Court  to  construe  the  meaning  of  acts  of  Congress;  but  this  does  not 
include  the  power  to  repeal  them.  Neither  do  the  State  Constitutions 
confer  power  upon  their  Supreme  Courts  to  set  aside  an  act  of  a  State 
Legislature  which  has  been  passed  with  the  approval  or  over  the  veto  of 
the  Governor.  The  State  courts,  like  the  U.  S.  Supreme  Court,  must 
recognize  the  supremacy  of  the  Federal  laws  over  the  State  laws. 

It  is  argued  that  this  implies  a  power  in  the  courts  to  pass  upon  the 
constitutionality  of  an  act  of  Congress,  for  "otherwise  it  is  no  law." 
This  has  no  warrant  in  the  Constitution.  That  provides  that  when  the 
statute  has  been  passed  by  one  House  and  then  by  the  other,  and  ap- 
proved by  the  President,  or  passed  by  both  Houses  over  the  presidential 
veto,  it  is  a  law.  Any  assumption  by  the  courts  or  any  one  else  there- 
after to  set  it  aside  is  without  warrant,  except  in  sheer  judicial  assump- 
tion. 

In  England  the  veto  has  not  been  exercised  by  the  executive  in  any 
case  for  more  than  two  centuries ;  and  by  recent  legislation  when  the 
bill  is  passed  by  the  Lower  House,  the  representatives  of  the  people,  on 
two  separate  occasions  it  becomes  a  law  in  spite  of  an  adverse  vote  of 
the  Upper  House.  Yet  England  is  not  governed  by  a  mob,  and  they  are 
imduly  frightened  at  popular  rule  who  doubt  the  capacity  of  the  Ameri- 
can people,  acting  through  the  House  and  Senate  and  with  the  approval 
of  the  President,  to  pass  legislation,  subject  only  to  the  review  of  the 
people  themselves  in  the  choice  of  new  agents. 

As  further  evidence,  the  Constitution  did  not  create  the  Supreme 
Court,  but  left  it  with  Congress  to  prescribe  its  membership,  and,  with 
unimportant  exceptions,  left  its  jurisdiction  to  be  prescribed  by  Con- 
gress, "with  such  exceptions  and  under  such  regulations  as  Congress 
shall  prescribe."  As  to  the  lower  Federal  courts,  they  were  to  be  "or- 
dained and  established"  by  Congress  from  time  to  time,  which,  of  course, 
must  prescribe  and  regulate  their  jurisdiction.  In  1803  Congress  abol- 
ished sixteen  Federal  Circuit  Courts,  and  from  time  to  time  since  has 
abolished  District  Courts.  It  has  increased  and  reduced  at  will  the  num- 
ber of  Supreme  Court  judges.     Congress  also  has  the  power  to  remove 


14 

the  judges  by  impeachment.  These  provisions  of  the  Constitution  cer- 
tainly do  not  indicate  the  irreviewable  supremacy  of  the  Supreme  Court 
(or  of  five  members  thereof)  over  the  law-making  body. 

In  England,  the  judges  once  (and  only  once)  held  an  act  of  Parlia- 
ment invalid,  and  then  Chief  Justice  Tressilian  was  hanged  and  his 
associates  were  banished  to  France.  With  such  encouragement,  the 
courts  in  England  have  never  since  attempted  a  like  feat.  There  have 
been  expressions  from  time  to  time  in  the  English  courts  that  an  act  of 
Parliament  was  unconstitutional,  but  those  who  are  conversant  with  the 
English  decisions  know  that  this  was  merely  an  expression  by  the  judges 
that  such  legislation  was  in  their  opinion  not  conformable  to  the  un- 
written Constitution  of  the  Kingdom,  but  in  not  one  of  those  cases  was 
it  held  that  the  act  was  void,  and  the  courts  have  not  attempted  to  set  it 
aside  or  dared  to  disregard  it.  In  this  connection,  reference  may  be 
had  to  the  misimpression  that  the  English  judges  hold  for  life,  which 
they  do  not.  Prior  to  the  Revolution  of  1688,  the  English  judges  held 
subject  to  the  pleasure  of  the  king,  who  could  and  did  remove  them  at 
will.  Ever  since  1688  they  hold  subject  to  the  will  of  Parliament,  which 
can  remove  any  judge  by  a  majority  vote  without  a  trial.  A  similar 
provision  obtains  in  the  Constitution  of  Massachusetts,  and  though 
Daniel  Webster  in  the  Constitutional  Convention  of  his  day  earnestly 
endeavored  to  have  that  provision  stricken  out  it  was  and  still  is  re- 
tained. In  practice,  this  power  has  been  seldom  exercised  in  England, 
and  never,  I  believe,  in  Massachusetts,  but  the  power  is  there  and  is  a 
full  recognition  of  the  fact  that  the  law-making  body,  and  not  the  court, 
is  the  supreme  power  in  the  State  to  prescribe  its  laws. 

MARBURY  V.  MADISON 

The  Court  in  Marhury  v.  Madison  declared  (though  in  an  obiter 
dictum)  that  it  had  power  to  hold  an  act  of  Congress  unconstitutional, 
but  it  did  not  exert  that  power  for  fifty-four  years — till  the  Dred  Scott 
case  in  1857,  when  (in  another  obiter)  it  held  the  Missouri  Compromise 
invalid,  and  thereby  "turned  loose  the  dogs  of  war."  This  decision  has 
been  followed  since  by  the  Court  construing  the  language  of  the  Four- 
teenth Amendment,  which  was  enacted  for  the  protection  of  the  newly 
emancipated  slaves  (which  it  did  not  effect)  as  conferring  such  power. 
But  unless  the  Constitution  made  the  Supreme  Court  (or  rather  five 
members  thereof)  the  supreme  and  ultimate  power  in  the  government, 
the  decision  in  Marbury  v.  Madison  and  all  decisions  since  based  on  it 
cannot  amend  the  Constitution.  The  proper  mode  to  amend  the  Con- 
stitution is  through  the  law-making  department  of  the  Federal  Govern- 
ment, with  the  ratification  of  the  law-making  bodies  in  three-fourths  of 
the  States.  In  this  there  is  no  indication  that  the  courts  are  to  have 
any  power  in  amending  the  framework  of  our  Federal  Union.  It  is 
solely  a  matter  for  the  people  acting  through  their  duly  elected  repre- 
sentatives. 


15 

■  There  has  been  a  great  effort  by  lawyers  representing  aggregated 
•wealth  to  arouse  the  esprit  du  corps  of  the  Ic.^al  profession,  as  if  to 
deny  the  infallibility  of  five  lawyers  on  the  Supreme  Court,  is  an  attack 
upon  the  lawyers  of  the  country.  There  is  nothinj;  in  the  Constitution 
which  entrusts  the  control  of  our  Government  to  any  one  profession  or 
calling;  but  if,  as  some  seem  to  argue,  it  should  be  entrusted  by  tacit 
consent  to  the  lawyers  of  the  country,  there  remains  the  fact  that  on  an 
average  more  than  60  per  cent  of  the  Legislatures  and  of  both  Houses 
of  Congress  and  of  the  State  Executives  and  of  our  Presidents  have  been 
lawyers,  and  to  admit  that  the  power  to  overrule  their  action  resides  in 
the  infallibility  of  a  majority  of  five  lawyers  at  Washington,  and  as  to 
State  le2;islation  in  a  majority  of  the  State  Supreme  Court,  is  the  great- 
est reflection  upon  the  Bar  instead  of  an  honor  conferred  upon  it.  There 
is  never  a  session  of  Congress  in  which  there  is  not  more  legal  ability  in 
the  two  Houses  and  the  President  than  there  is  in  any  five  men  upon 
the  Court ;  and  the  same  is  true  as  to  the  State  Legislatures  and  Gov- 
ernors and  the  State  courts.  Congress  and  the  President  are  elective 
and  reviewable,  but  the  Court  is  not. 

COURTS  NOT  INFALLIBLE 

The  Supreme  Court  has  not  been  infallible.  Its  action  in  the  Dart- 
mouth College  case  has  been  entirely  overruled  by  provisions  inserted 
in  the  several  State  Constitutions,  and  the  method  in  which  that  decision 
was  brought  about  conferred  no  credit  upon  the  Court  of  that  day. 

The  Court  in  many  cases  has  held  that  its  own  action  was  unconsti- 
tutional by  overruling  its  former  decisions.  As  to  the  decision  in  the 
Legal  Tender  case,  every  one  knows  how  a  reversal  was  brought  about 
by  reducing  and  increasing  the  number  of  judges.  In  the  McCardle  case 
Congress  asserted  its  prerogative  by  prescribing  "Such  exceptions  and 
regulations"  as  prevented  the  Court  from  attempting  to  set  aside  the 
act  of  Congress  in  question,  though  the  lower  court  had  already  passed 
upon  it.  In  the  Income  Tax  case  the  Court  first  affirmed  its  unbroken 
precedents  of  a  hundred  years,  and  then  by  a  change  in  the  vote  of  one 
judn;e  reversed  it,  thereby  declaring  its  previous  action  unconstitutioual, 
and  necessarily  holding  that  it  was  not  infallible. 

The  Lochner  case,  which  held  that  the  law-making  authority  could 
not  restrict  the  hours  of  labor  to  ten  hours  a  day,  has  since  been  over- 
ruled by  the  decision  as  to  the  Adamson  Law  holding  valid  legislation 
limiting  the  hours  of  labor  to  eight  hours.  The  judicial  somersault  as 
to  the  income  tax  required  twentj'  years  to  remedy  by  a  constitutional 
amendment,  and  in  the  interim  transferred  $3,000,000,000  from  the  over- 
rich  upon  whom  the  law-making  body  had  placed  a  fair  share  of  the 
burdens  of  the  Government,  and  by  judicial  enactment  transferred  it  to 
the  laborers  and  farmers  of  the  country.    Shall  this  always  be  necessary? 

If  the  judges  were  infallible,  there  might  be  more  excuse  for  this  as- 
sumption of  power;  but  the  effect  of  the  Income  Tax  decision  and  many 


16 

others  shows  why  this  claim  of  absolute,  irreviewable,  and  ultimate 
sovereignty  in  a  majority  of  the  Court  is  maintained.  It  is  simply  be- 
cause the  decisions  in  those  cases  have  inured  to  the  protection  of  the 
possessors  of  aggregated  wealth  or  self-styled  "vested  interests."  The 
lawyers  representing  those  interests  are  zealous  to  assail  those  who  deny 
that  this  power  is  conferred  by  the  Constitution.  Without  any  reflection 
upon  the  incumbents  of  that  Bench  in  any  period  of  its  history,  it  has 
been  but  natural  that  men  who  have  achieved  prominence  as  the  repre- 
sentatives and  counsel  of  great  corporations  have  been  those  most  gener- 
ally selected  by  the  influences  which  control  appointments  to  the  Bench. 
If  the  power  resides  in  such  infallible  majority,  whether  of  the  Federal 
or  State  Supreme  Courts,  to  negative  the  action  of  the  bodies  elected  by 
the  people  to  make  their  laws,  with  the  approval  of  the  executives  chosen 
by  the  people,  then  the  control  of  our  Government  is  in  whatever  influ- 
ences can  secure  the  appointment  or  selection  of  a  majority  of  the  Court. 
Of  course  the  great  "Interests"  and  "Big  Business"  are  alarmed  at  the 
denial  of  such  power  in  the  courts  and  plausible  arguments  can  always 
be  made  by  lawyers. 

WHAT  CLAUSE  IN  THE  CONSTITUTION? 

The  question,  however,  narrows  down  to  this :  "What  clause  in  the 
Federal  Constitution  confers  upon  the  Court  the  irreviewable  veto  upon 
an  act  of  Congress  passed  by  the  two  Houses  of  Congress  and  approved 
by  the  President?"  If  there  is  such,  let  it  be  pointed  out  and  end  the 
controversy.  All  the  argument  in  the  world  cannot  put  it  there.  If  the 
clause  is  there,  any  one  who  can  read  can  see  it  as  well  as  a  robed  judge. 

It  is  a  singular  argument  when  the  ruling  of  the  Court  in  conferring 
this  power  upon  itself  is  questioned  to  cite  subsequent  rulings  by  the 
courts  to  the  same  effect.  If  the  first  ruling  was  an  illegal  assumption 
and  erroneous,  all  the  subsequent  decisions  are  the  same.  One  hundred 
times  zero  is  zero  still.  The  repetition  of  an  error  does  not  make  it  true. 
The  only  question  is :  "Is  there  such  provision  in  the  Constitution  ?" 
That  is  the  sole  test.  If  there  is,  no  argument  is  needed.  Simply  let  it 
be  pointed  out.  The  resort  to  argument,  however  ingenious,  is  in  itself 
an  admission  that  the  power  is  not  granted  the  Court  in  the  Constitu- 
tion, but  was  created  by  the  Court  in  its  own  favor. 

Does  the  governing  power  reside  in  the  peojile  who  elect  the  House 
and  Senate  and  the  President,  or  in  the  influences  which  shall  be  able 
to  secure  the  appointment  of  five  judges  of  their  own  way  of  thinking 
on  public  questions? 

The  King  of  England  had  the  unquestioned  and  absolute  veto  power 
(though  for  two  centuries  he  has  not  used  it).  Yet  if  our  Constitution 
had  not  given  the  President  in  express  words  the  veto,  and  he  had  at- 
tempted to  veto  an  act  of  Congress  on  the  ground  either  that  the  King 
of  England  had  such  power,  or  that  the  act  of  Congress  was  unconstitu- 
tional, he  would  have  been  promptly  impeached. 


17 

On  the  other  hand,  the  courts  in  England  never  had  the  power  to  set 
aside  an  act  of  Parliament,  and  our  Constitution  does  not  give  it  to  them, 
but  the  Courts  have  assumed  it! 

GOVERNMENT  BY  THE  ODD  MAN 

The  U.  S.  Supreme  Court  has  on  several  occasions  set  aside  an  act 
by  a  vote  of  5  to  4 — ?'.  c,  it  held  that  the  two  Houses  of  Congress,  the 
President,  and  four  members  of  the  Court  were  fallible,  but  the  other 
five  were  infallible.  The  divine  infallibility  of  heaven  rests  therefore 
on  the  odd  man.  But  in  the  Income  Tax  case  the  divine  afflatus  which 
rested  on  the  odd  man  itself  changed.  After  holding  the  tax  valid 
according  to  the  precedents  of  one  hundred  years  the  odd  man  went 
over  to  the  viewpoint  asserted  by  the  Interests  and  eo  instanti  his  four 
infallible  associates  of  the  day  before  became  fallible  and  the  four  falli- 
ble judges  of  the  day  before  co  instanti  became  infallible.  The  divine 
afflatus  on  the  odd  man  shifted  like  a  summer's  breeze.  The  action  of 
Congress  and  the  President  expressing  the  will  of  a  free  and  great  peo- 
ple became  null  and  void.  It  took  twenty  years  and  a  constitutional 
amendment  to  recover  the  right  which  Congress  had  exercised  till  1893 
to  tax  incomes.  In  those  twenty  years  great  wealth  received  an  exemp- 
tion of  three  thousand  millions  of  dollars  which  had  been  thus  shifted 
upon  the  laborers  and  farmers  of  the  country. 


"Making  the  Word  of  None  Effect 
by  Their  Traditions" 


By  Chxef  Justice  Walter  Clabk. 


(Reprinted  from  The  Public.) 

A  lawyer  would  never  think  of  construing  a  statute  by  industriously 
getting  together  the  statements  of  the  members  of  the  Legislature,  or  of 
Congress,  many  years  afterwards  as  to  what  they  intended,  or  by  pro- 
curing their  views  upon  the  general  subject.  Yet  that  is  what  has  been 
attempted  to  be  done  in  regard  to  the  Constitution  of  the  United  States. 
The  intent  of  the  members  of  the  Convention  is  immaterial  even  if  it 
could  be  proven  in  this  way.  The  question  is.  What  power  does  the 
language  of  the  Constitution  confer  on  the  courts?  That  language  is 
as  readily  ascertainable  today  as  at  any  other  time  and  can  be  deter- 
mined by  any  one  who  can  read  the  English  language.  Certainly  no 
one  has  ever  asserted  that  there  is  any  clause  of  the  Constitution  which 
expressly  confers  on  the  courts  the  veto  power  which  the  Constitution 
does  confer  upon  the  Executive. 

The  power  is  not  expressly  conferred  and  the  Court  could  not  assume 
it  by  argument.  The  fact  that  there  have  been  decisions — in  Marbury  v. 
Madison  and  in  the  Dred  Scott  case  before  the  war,  and  several  cases 
since — cannot  authorize  the  courts  to  take  a  power  if  it  is  not  granted 
them.  To  assert  this  is  to  do  like  the  Pharisees,  who  the  Master  asserted 
"Made  the  Word  of  none  effect  by  their  traditions." 

Alexander  Hamilton,  in  the  81  Federalist,  declared  there  was  not  a 
syllable  in  the  Federal  Constitution  giving  the  courts  this  power.  No 
man  more  earnestly  desired  that  the  Court  should  have  this  power,  for 
of  all  the  leading  men  of  his  day  he  most  feared  government  by  the  peo- 
ple. His  great  opponent,  Thomas  Jefferson,  on  the  promulgation  of  the 
obiter  dictum  in  Marbury  v.  Madison,  promptly  denied  that  the  courts 
had  such  power  under  the  Constitution. 

It  was  a  shrewd  move  on  the  part  of  Marshall  (who,  by  the  way,  was 
Jefferson's  near  kinsman)  to  assert  the  power  as  an  abstract  proposition 
instead  of  in  a  concrete  form  which  President  Jefferson  would  have 
negatived. 

When  Marshall  made  another  of  his  unwarranted  assertions  of  power, 
President  Jackson  said,  "John  Marshall  has  made  his  decision,  has  he? 
Now  let  us  see  him  execute  it,"  and  it  was  never  executed,  and  to  this 
day  has  remained  a  harmless  paper  in  the  archives  of  the  court. 


19 

When  in  1857,  in  the  Dred  Scott  case  (fifty-four  years  after  Marhury 
V.  Madison),  the  Court  for  the  first  time  assumed  to  set  aside  an  act  of 
Congress,  relying  upon  the  support  of  the  then  President  (whose  letters 
expressing  the  desire  that  the  Court  should  so  decide  are  still  extant) 
Abraham  Lincoln,  as  promptly  and  as  emphatically  as  President  Jeffer- 
son denied  the  authority  of  the  Court  to  exercise  such  power.  The  same 
views  have  been  expressed  since  by  James  A.  Garfield,  Theodore  Roose- 
velt, and  many  others.  Let  us  admit  that  their  views  can  avail  no  more 
against  the  proposition  than  that  of  the  judges  in  favor  of  granting 
themselves  the  supreme  power  over  the  other  two  departments  of  the 
Government.  The  test  is  not  what  any  men,  however  distinguished, 
have  said  on  either  side  of  the  question.  The  sole  test  is  what  clause  in 
the  Constitution  confers  this  supreme  power  upon  five  men  to  set  aside 
an  act  of  the  two  Houses  of  Congress  approved  by  the  President?  If 
there  is  such  clause,  no  argument  is  needed;  if  there  is  none,  then  the 
traditions  of  the  elders  cannot  supply  its  absence  in  the  word. 

OUGHT  THE  COURTS  TO  HAVE  THE  VETO  POWEK? 

Neither  is  the  question  to  be  debated  whether  the  courts  ought  to 
have  this  power.  The  inquiry  is.  Does  the  Constitution  confer  it?  It 
is  not  an  incidental  or  merely  inferential  power.  It  is  the  greatest  of 
all  powers  and  cannot  be  created  by  argument.  There  is  power  to 
review  the  action  of  Congress  and  the  President,  but  it  is  not  given  to 
the  Court.  That  power  is  the  people,  of  whose  sovereignty  the  great 
reactionary  Interests  are  so  fearful. 

It  is  true  that  the  Constitution  gave  the  "Judicial  Power"  to  the 
Supreme  Court,  "subject  to  exceptions  and  regulation  by  Congress,"  but 
to  assert  that  the  judicial  power  embraces  the  supreme  power  to  disallow 
the  action  of  the  law-making  body  is  to  beg  the  very  question  at  issue. 
Such  power  did  not  exist  in  England,  nor  does  it  exist  today  in  any 
other  country.  It  could  not  be  a  part  of  the  judicial  power  under  the 
Constitution  of  the  new  government  unless  it  was  put  there  by  the  Con- 
stitution. 

Those  who  doubt  the  capacity  of  the  people  for  self-government  can 
suppose  cases  where  the  two  Houses  of  Congress  and  the  President  may 
conspire  to  act  foolishly  and  unconstitutionally.  If  so,  why  not  also 
suppose  that  five  men  on  the  Supreme  Court,  who,  unlike  Congress  and 
the  President,  have  not  been  placed  in  their  positions  by  the  expressed 
confidence  of  the  people  at  the  ballot  box  in  their  integrity  and  ability, 
should  act  foolishly  or  unconstitutionally  ?  The  two  Houses  of  Con- 
gress and  the  President,  acting  in  the  open  and  subject  to  review  at  the 
ballot  box,  are  less  likely  to  conspire  against  the  rights  of  the  people 
than  five  men  who,  as  Jefferson  expressed  it,  may  "huddle  up  their  de- 
cisions in  secret  conclave."  It  is  no  reflection  upon  the  Court  to  say 
that  those  who  laid  the  foundation  of  the  new  government  believed  that 


20 

the  House  and  Senate  and  President  acting  together  could  be  trusted 
with  law-making  power,  subject  to  the  approval  or  disapproval  of  the 
people.  The  Constitution  required  no  other  review.  No  amendment 
subjecting  Congress  to  supervision  by  the  Court  could  be  inserted  in 
the  Constitution  today. 

The  people  elect  the  two  Houses  of  Congress  and  the  President,  and 
do  not  need  to  be  "defended"  from  them  by  the  judges,  in  whose  selection 
they  have  no  voice  and  who  hold  for  life  without  regard  to  the  constitu- 
tionality of  their  actions  or  popular  approval. 

NOT  A  JUDICIAL  POWER  AT  ALL? 

The  power  to  set  aside  or  nullify  an  act  of  Congress  or  a  State  Legis- 
lature is  a  purely  political  power  and  is  so  recognized  by  the  Constitu- 
tions which  give  the  veto  to  the  Executive.  It  comes  under  no  definition 
or  conception  of  the  judicial  power,  which  is  to  judge  between  the  par- 
ties to  a  controversy.  Neither  the  Government  nor  the  State  is  a  party 
to  these  proceedings,  in  which  its  supremest  power — that  of  enacting 
laws — is  nullified.  As  claimed  and  exercised  by  the  courts,  it  is  the 
absolute,  autocratic  power,  because  it  is  irreviewable.  Those  whose  in- 
terest it  is  to  have  such  power  over  the  legislative  and  executive  assert 
it  for  their  own  ends.  The  wonder  is  that  it  has  ever  been  acquiesced 
in  at  all  under  a  free  form  of  government. 

The  Constitution  does  not  confer  the  absolute  "judicial  power  of  the 
U.  S."  upon  the  courts.  If  it  did  it  nowhere  prescribes  that  the  "judi- 
cial" power  includes  the  power  to  nullify  the  action  of  the  law-making 
power  approved  by  the  President.  To  assert  that  is  begging  the  very 
question  at  issue.  The  courts  in  England  and  all  other  countries  exer- 
cise the  full  judicial  power  of  their  respective  countries,  but  in  none  of 
them  do  they  assume  to  set  aside  an  act  of  the  department  charged  with, 
the  duty  of  making  the  laws.  The  judicial  power  that  is  conferred  by 
our  Constitution  is  expressly  made  subject  "to  such  exceptions  and 
under  such  regulations  as  Congress  shall  prescribe."  It  did  prescribe 
such  exceptions  in  the  McCardle  case,  and  Senator  Owen's  bill  proposes 
to  do  the  same  thing. 

The  Constitution  is  written  in  plain  English  and  should  be  easily 
understood  of  all  men.  As  written  and  adopted,  it  confers  the  law- 
making power  upon  the  House  and  the  Senate,  with  the  safeguard  of 
the  approval  of  the  President,  which,  if  he  refuses,  can  be  overcome  by 
a  two-third  vote  in  each  House.  There  is  no  hint  of  any  further  review. 
The  Court,  without  any  authority,  has  created  itself  a  Privy  Council 
of  appointive,  life-tenure  members,  five  of  whom  in  secret  conclave  can 
defeat  the  law-making  power  given  by  the  Constitution. 


Judicial  Supremacy  Unwarranted 
by  the  Constitution 


By  CuiEF  Justice  Walteb  Clabk. 


(Reprinted  from  The  Public.) 

The  jurisdiction  conferred  on  the  Supreme  Court  by  the  Constition, 
Art.  Ill,  is  small,  and  then  follows:  "In  all  the  other  eases  before 
mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
to  law  and  fact,  with  such  exceptions  and  under  such  regulations  as 
Cnrifjrcss  shall  make." 

The  inferior  courts  are  "ordained  and  established"  by  Congress,  which 
must  prescribe  the  limits  of  their  jurisdiction.  The  claim  of  supremacy 
by  the  Judiciary  over  its  creator  is  therefore  not  authorized.  It  is  as- 
serted that  it  is  "necessary  to  the  independence"  of  the  Judiciary.  In 
fact,  it  is  the  assumption  by  it  of 

SUPREME.  IRRESPONSIBLE.  AND  AUTOCRATIC  POWER 

Of  course  every  department  of  the  Government  takes  an  oath  to  sup- 
port the  Constitution ;  but  the  sup-reme  power  to  review,  whether  they 
do  or  not,  is  reserved  to  the  people,  and  is  nowhere  given  to  the  Judi- 
ciary. 

If  Congress  disobeys  the  Constitution  the  members  of  both  the  House 
and  Senate  are  chosen  by  the  people  and  can  be  reviewed  at  the  next 
election. 

If  the  President  disobeys  the  Constitution,  he  is  chosen  by  the  people 
and  his  acts  can  be  reviewed  at  the  next  election. 

If  the  Federal  Judiciary  do  an  unconstitutional  act,  they  are  not 
chosen  by  the  people  and  cannot  be  reviewed  at  the  next  election.  That 
they  have  acted  unconstitutionally  has  been  held  by  themselves  in  re- 
versing the  Legal  Tender  decision  and  the  Income  Tax  decision,  in  the 
Ten-hour  case  (Lochner  case),  virtually  reversed  in  the  Adamson  Law 
case,  and  in  other  cases. 

In  the  Income  Tax  case  the  last  decision  was  wrong,  and  it  required 
eighteen  years  to  get  the  evil  corrected  by  constitutional  amendment, 
and  in  the  meantime  that  one  vote  of  one  judge  transferred  3,000  mil- 
lions of  dollars  taxation  from  the  predatory  rich  and  placed  it  upon  the 
producing  classes  of  the  country. 

Is  it  not  worth  while  to  prevent  other  abuses  by  an  irresponsible 
court,  a  bare  majority  of  whom  may  again,  as  so  often  in  the  past,  mis- 
take their  own  economic  views  for  the  Constitution. 


An  act  similar  to  tliat  now  proposed  by  Senator  Owen,  depriving  the 
Court  of  jurisdiction  over  the  Reconstruction  Acts,  was  admitted  by  the 
Court  itself  as  depriving  them  of  power  in  McCardle  ex  parte,  6  Wal- 
lace, 324. 

The  first  usurpation,  in  Marhury  v.  Madison,  during  the  incumbency 
of  Chief  Justice  Marshall,  was  made  by  an  obiter  dictum,  and  was  not 
repeated  as  to  an  act  of  Congress  for  fifty-four  years,  in  the  Dred  Scott 
case;  and  this  brings  me  to  the  purport  of  this  article,  which  is  to  call 
attention  to  the  motive  for  the  obiter  dictum  in  the  Marbury  case,  as 
follows : 

INVENTED  TO  SAFEGUARD  SLAVERY 

In  laying  the  foundation  of  the  Constitution,  there  began  the  trouble 
between  the  free  and  slavery  system  of  labor,  which  was  a  continuous 
struggle  down  to  1861.  It  was  compromised  by  the  Constitution  giving 
three-fifths  of  a  vote  to  slave  owners  as  representatives  of  their  slaves. 
It  was  recognized  that  by  the  increase  of  the  white  vote  at  the  North, 
as  well  as  by  immigration,  the  South  would  soon  lose  control  of  the 
House,  and  that  it  would  ultimately  lose  the  control  of  the  Senate, 
though  for  a  long  time  the  parity  was  kept  up  by  always  admitting  a 
slave  State  and  a  free  State  at  the  same  time.  On  the  admission  of 
Missouri  in  1820  we  came  near  a  dissolution  of  the  Union.  The  Mexi- 
can War  was  largely  caused  by  an  effort  to  maintain  the  political 
equality  of  the  slave  States  in  the  Senate.  For  a  long  time  the  South 
held  the  presidency  by  nominating  a  "Northern  man  with  Southern 
principles,"  but  when  Lincoln  was  elected  it  was  seen  that  that  could 
not  te  relied  on. 

The  Marbury  v.  Madison  decision  was  simply  "throwing  an  anchor 
to  windward"  by  giving  to  the  Supreme  Court  power  to  invalidate  any 
action  of  Congress,  though  approved  by  the  President,  which  should 
jeopardize  slavery,  and  which  thus  made  the  Court  a  third  line  of  de- 
fense that  would  last  the  lifetime  of  the  judges.  This  was  shattered  by 
the  hostile  reception  given  the  Dred  Scott  case,  and  the  results  of  the 
Civil  War.  The  contest  for  slavery  made  the  South  "A  section  apart," 
and  the  waves  have  not  yet  entirely  subsided.  They  have  a  proverb  in 
wind-swept  Spain,  a  land  of  wind  mills,  "Though  the  mills  are  down, 
the  winds  are  blowing  there  still." 

Marbury  v.  Madison  having  been  thrown  up  as  a  bulwark  for  the 
Slavery  Trust  when  the  Fourteenth  Amendment  was  passed  with  a  pro- 
vision intended  for  the  protection  of  the  emancipated  negro  (which  it 
did  not  effect),  the  Interests  created  by  the  war,  through  the  new  ap- 
pointees from  time  to  time  on  the  Supreme  Bench,  secured  for  them- 
selves the  construction  by  the  Court  of  a  newer  and  deadlier  theory  than 
Marbury  v.  Madison,  which  was  outworn.  As  to  the  Reconstruction 
Acts,  Congress  made  the  Court  stand  off.  But  as  the  Court  is  appoint- 
ive, and  for  life,  the  people  have  no  hand  in  choosing  them  and  no 
power  to  review  them,  and  if  their  assumption  of  the  supreme  and  ulti- 


nate  power  of  review  of  the  action  of  Congress  shall  continue  to  be 
ubstituted  for  that  of  the  people,  then  aggregated  wealth,  following  the 
sample  of  the  slavery  leaders  down  to  1861,  have  the  irreviewable 
lower  to  control  the  Government  and  set  at  naught  the  will  of  the  peo- 
ile  on  all  })ublie  questions. 

In  Haines'  "Judicial  Supremacy,"  pp.  234  and  282,  it  is  stated  that 
wice  before — in  1825  and  1867 — bills  like  Senator  Owen's  present  bill 
fcro  introduced.  That  in  1867  passed,  but  applied  only  to  the  Recon- 
truction  Act,  and  was  obeyed  by  the  Court  in  the  McArdle  case. 

JEFFERSON  AND  LINCOLN 

"Wlien  the  Marhury  r.  Madison  decision  was  rendered  it  was  at  once 
'.enounced  by  President  Thomas  Jefferson  as  an  usurpation  unwarranted 
n  the  Constitution,  and  when  it  was  repeated  fifty-four  years  later  in 
ihe  Dred  Scott  case  it  was  as  vigorously  denounced  by  Abraham  Lincoln, 
,nd  these  men  were,  respectively,  the  very  chief  est  of  the  apostles  of  the 
■wo  great  parties  now  before  the  country. 

Mr.  Jefferson  wrote  to  Chief  Justice  Spencer  Roane  of  Virginia :  "If 
he  judges  have  the  power  to  annul  statutes  in  conflict  with  the  Consti- 
ution,  then  the  Constitution  and  laws  are  a  mere  thing  of  wax  which 
hey  may  twist  and  shape  into  any  form  they  please."  The  power  of 
he  courts  to  do  so  has  been  disputed  at  all  times. 

In  passing  the  Keating  Child-Labor  Bill,  the  House  and  Senate  de- 
ilared  the  public  policy  of  the  people,  by  whom  they  were  elected  and 
vhose  will  they  represented.  The  President  not  only  approved,  but 
•equested,  the  passage  of  the  act.  The  odd  man  on  the  Court,  imbued 
vith  the  ideas  of  judicial  supremacy  and  the  rights  of  Capital  over 
Labor  handed  down  from  John  Marshall  and  a  Court  impressed  with 
he  necessity  of  protecting  slavery,  set  the  act  aside.  Where  does  the 
governing  power  reside? 

Senator  Owen's  bill,  reenacting  the  Child-Labor  Law  and  prohibiting 
he  Supreme  Court  from  invalidating  it,  can  be  more  speedily  adopted 
ban  a  constitutional  amendment,  and  will  be  as  effective. 


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